Com. v. McClain, A. ( 2016 )

J-A17033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANGELA MCCLAIN
Appellant No. 3164 EDA 2015
Appeal from the Judgment of Sentence September 8, 2015
In the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000331-2014
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 27, 2016
Appellant, Angela McClain, appeals from the judgment of sentence
entered in Carbon County Court of Common Pleas, following her guilty plea
to multiple counts of acquisition or obtaining of possession of a controlled
substance by misrepresentation, fraud, forgery, deception or subterfuge;
knowingly or intentionally possessing a controlled or counterfeit substance;
corrupt organizations; criminal conspiracy; and theft by unlawful taking or
disposition.1 We affirm.
The relevant facts and procedural history of this appeal are
summarized briefly as follows. On April 27, 2015, Appellant pled guilty to 25
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1
35 P.S. §§ 780-113(a)(12), (a)(16); 18 Pa.C.S.A. §§ 911, 903, and
3921(a), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-A17033-16
counts of acquisition or obtaining of possession of a controlled substance by
misrepresentation, fraud, forgery, deception or subterfuge; knowingly or
intentionally possessing a controlled or counterfeit substance; corrupt
organizations; criminal conspiracy; and 27 counts of theft by unlawful taking
or disposition. Following the guilty plea and the preparation of a pre-
sentence investigation (“PSI”) report, the trial court sentenced Appellant on
September 8, 2015, to an aggregate term of imprisonment of thirty-six (36)
to seventy-two (72) months with a concurrent twelve (12)-month term of
probation. The trial court also deemed Appellant eligible for the Recidivism
Risk Reduction Incentive Program, making her minimum sentence of
incarceration twenty-seven (27) months. The trial court advised Appellant
of her appellate rights at the sentencing hearing, including her right to file
post-sentence motions and her right to appeal to the Superior Court as well
as the associated time limits. Appellant did not file any post-sentence
motions.
On September 28, 2015, twenty days after imposition of sentence and
ten days after the deadline for filing a post-sentence motion, Appellant
suffered a stroke. Appellant suffered a second stroke shortly after being
transported to the hospital. The second stroke caused Appellant partial
paralysis on her left side. On October 8, 2015, thirty days after sentencing,
Appellant filed a petition for leave to file a post-sentence motion nunc pro
tunc. Appellant cited her recent stroke as justification for post-sentence
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relief. The trial court denied this motion the same day, and Appellant
immediately filed a notice of appeal. By order dated October 9, 2015, the
trial court directed Appellant to file a concise statement of errors complained
of on appeal within twenty-one days of the date of entry on the order.
Appellant timely complied on October 20, 2015.
Appellant raises the following issue on appeal:
WHETHER THE TRIAL COURT SHOULD HAVE ALLOWED
[APPELLANT] TO SEEK RECONSIDERATION OF HER
SENTENCE NUNC PRO TUNC WHEN THE RELEVANT FACT
OF HER PHYSICAL CONDITION DID NOT MANIFEST ITSELF
UNTIL AFTER THE EXPIRATION OF DEADLINE TO SEEK
RECONSIDERATION OF SENTENCE?
(Appellant’s Brief at 3).
Appellant argues her looming stroke was a non-negligent condition
that warrants post-sentence relief nunc pro tunc. Appellant maintains her
strokes and their effects were the extraordinary circumstances. Appellant
avers she had no way of knowing her future status as partially-paralyzed,
and this health status constitutes a non-negligent condition sufficient to
trigger the expansive authority of the court to allow post-sentence motions
nunc pro tunc. Appellant submits that if she had suffered her stroke within
the ten-day post-sentence period, she would have raised this issue in a
timely post-sentence motion for modification of sentence. Appellant
concludes that the court should have considered her post-sentence medical
condition as the kind of non-negligent circumstance extraordinary enough to
warrant relief. We disagree.
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“Trial courts have the power to alter or modify a criminal sentence
within thirty days after entry, if no appeal is taken.” Commonwealth v.
Walters, 814 A.2d 253, 255 (Pa.Super. 2002), appeal denied, 574 Pa. 760,
831 A.2d 599 (2003). “To be entitled to file a post-sentence motion nunc
pro tunc, a defendant must…demonstrate sufficient cause, i.e., reasons that
excuse the late filing.” Commonwealth v. Dreves, 839 A.2d 1122, 1128
(Pa.Super. 2003) (en banc) (footnote omitted).
[W]e recently observed that the decision to allow the filing
of a post-trial motion nunc pro tunc is vested in the
discretion of the trial court and that we will not reverse
unless the trial court abused its discretion.
… Merely designating a motion as “post-sentence motion
nunc pro tunc” is not enough. When the defendant has
met this burden and has shown sufficient cause, the trial
court must then exercise its discretion in deciding whether
to permit the defendant to file the post-sentence motion
nunc pro tunc.
* * *
The request for nunc pro tunc relief is separate and distinct
from the merits of the underlying post-sentence motion.
The trial court’s resolution of the merits of the late post-
sentence motion is no substitute for an order expressly
granting nunc pro tunc relief.
Id. at 1128-29 (emphasis added). Our Supreme Court has validated nunc
pro tunc relief when there is “fraud or a breakdown in the court’s
operations,” a defendant has been hospitalized during the 10-day post-
sentence period, non-negligent attorney conduct results in a late filing, or a
late filing as the result of a third party. Commonwealth v. Stock, 545 Pa.
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13, 18-19, 679 A.2d 760, 763 (1996) (citations omitted).
Instantly, the court addressed Appellant’s claim as follows:
[Appellant] asserts that had she known she would suffer
these strokes, or alternatively if the strokes occurred prior
to the expiration of the time to file post-sentence motions,
she would have filed a post-sentence motion requesting a
modification of her sentence on the grounds that her
medical condition was a mitigating factor supporting the
imposition of a lesser sentence. [Appellant] argues that
the timing of her strokes after the ten day period to file
post-sentence motions had passed is an extraordinary
circumstance entitling her to pursue her motion nunc pro
tunc. [Appellant] cites no case law to support this
position.
No authority has been found to support the proposition
that an appellant’s hospitalization for a serious medical
event after the deadline to file either post-sentence
motions or a direct appeal has passed is an extraordinary
circumstance that would excuse a late filing. To the
contrary, logic dictates otherwise: if the only reason given
for an untimely filing is an event that occurred after the
period for timely filing has passed, then sufficient cause to
excuse the late filing has not been demonstrated. Given
the absence of any extraordinary circumstance justifying
the late filing of post-sentence motions, our denial of
Appellant’s Motion to File Post-Sentence Motions nunc pro
tunc was not an abuse of discretion.
(Trial Court Opinion, filed November 3, 2015, at 6-7). The record supports
the court’s decision to deny Appellant’s motion for post-sentence relief nunc
pro tunc in which she sought a reduction or elimination of her sentence
based on her medical condition. Moreover, we recognize Appellant has the
option to seek alternative relief under 42 Pa.C.S.A. § 9777 (providing for
transfer of inmates in need of medical treatment). Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2016
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